from the more-confrontational dept

We pointed out last year that one of the knock-on effects of Edward Snowden's revelations about massive NSA (and GCHQ) spying on Europeans was a call to suspend the economically-critical Safe Harbor program. Without Safe Harbor, it would be illegal under European law for companies like Google and Facebook to take EU citizens' personal data outside the EU, which would make it more difficult to run those services in their present form. Nothing much happened after that call by the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) committee -- not least because it does not have any direct power to formulate EU policy -- but the unhappiness with Safe Harbor has evidently not gone away.

Heise Online reports that two of Germany's data protection commissioners -- those for the cities of Berlin and Bremen -- have started proceedings against the transfer of data to the US under the Safe Harbor agreement (original in German.) This seems to represent a hardening of their position. The Heise article quotes another data protection commissioner, this time for the city of Hamburg, as saying that the mood among his colleagues was more confrontational now. Similarly, the commissioner for Berlin commented:

Whether the US authorities will be willing to make of those improvements, or whether they might just hope the European public's dependence on Google and Facebook will prevent drastic action being taken by the EU, remains unclear. Complicating matters still further is a separate argument about whether data flows should be included in the various trade negotiations involving the US and the European Union. The latest move by German data protection commissioners is unlikely to make resolving these issues any easier.

from the damn-lies-and-statistics dept

To be clear, the United States is indisputably mediocre when it comes to broadband. It doesn't really matter if you look at data from FCC, the the OECD, OOkla's Net Index or walk next door and ask your neighbor. We're average or worse on metrics like speed (three quarters of the country has no competitive option at speeds faster than 25 Mbps), penetration, price and adoption, and we're among the worst anywhere when it comes to customer service. In fact U.S. broadband customer service is so bad, people rank the IRS, banking industry, insurance companies and the airlines higher.

That said, it's endlessly amusing to watch the broadband industry (and its varied assortment of fauxcademics, sock puppets, think tankers, lobbyists and PR tendrils) time and time and time again declare that U.S. broadband is secretly incredibly awesome, and the people stuck paying $100 for a sub 3 Mbps DSL connection and mandatory (though unwanted) landline aren't looking at the numbers right.

The latest study of this type comes courtesy of our friends over at the Verizon, Comcast and AT&T funded American Enterprise Institute, whose latest analysis (pdf) compares U.S. broadband to only other G7 countries, since a broader global comparison makes us look worse. Unsurprisingly, the AEI finds we're competitive under this criteria if you look at specific metrics in just the right way, ignore all previous studies, tilt your head just the right way, and ignore the industry's awful customer service. The study resulted in websites like Vox recently running articles with headlines like "American broadband is better than you think." Much of the AEI data is sound, it's just highly selective and selectively re-arranged.

For example the study is quick to point out that the United States has done a better job at deploying the latest DOCSIS 3.0 cable network upgrades than other G7 countries. That's not particularly surprising. The predominant connectivity option overseas is DSL, which costs significantly more to upgrade to fiber to the home, while U.S. cable networks were relatively inexpensive to upgrade to DOCSIS 3.0 (Comcast is on record stating DOCSIS 3.0 upgrade costs were "the kind of money we can find in the sofa cushions"). The fact that we're leading in a highly specific metric certainly makes a very lovely chart:

The fact the United States leads in DOCSIS 3.0 deployment becomes less sexy when you realize that two-thirds of U.S. consumers still only have one competitive choice when it comes to speeds above 25 Mbps. That one choice is thanks to (you guessed it) DOCSIS 3.0 upgrades, which while an improvement still lag on the upstream side of the equation, which is why your cable speeds tend to be so top heavy (say 30 Mbps downstream, 2 Mbps upstream). But while the United States has more cable in the ground than Europe sounds nice, it's kind of like observing that Europe has different trees. It's perhaps notable, but doesn't refute U.S. broadband mediocrity. Also worth noting (since the study doesn't): companies like AT&T and Verizon in the U.S. are simply giving up on DSL in many markets, leaving cable the only game in town.

Similarly, the study makes a big deal out of the fact the United States leads many G7 countries when it comes to the number of total fiber based connections, a metric that includes fiber to the home connections like Google Fiber, and the slower and much less costly fiber to the node connections like AT&T U-Verse. Of course, all G7 countries (sans Japan) have struggled with broad fiber deployment, since it's very fashionable to throw subsidies at your regional incumbent telco for fiber, then hope for the best. According to the Fiber to the Home Council website, there are now 640,000 North American households receiving fiber to the home service with connection speeds of at least 100 megabits per second after a generation of broadband subsidies. Hooray for us, I guess?

The study makes light of all price studies that came before it, arguing that every earlier study and stat firm in the world managed to get their broadband price calculations wrong, but a think tank employed in part by the nation's largest ISPs has cornered the market on sound broadband pricing analysis. AEI appears to be largely fixated on a recent study by the Open Technology Institute, which noted that U.S. cities are falling behind when it comes to broadband pricing (with the exception of cities that build their own networks like Chattanooga):

"Our findings show that the average cost of plans in nearly every speed tier we selected is higher in the U.S. than in Europe, and seven of the nine U.S. cities surveyed for the report have average prices that are higher than the median for plans offered between 25 and 50 Mbps download speeds...We found similar results when comparing the average speed of plans ranging from $35 to $50, and the average data cap for mobile broadband plans ranging from $35 to $45."

U.S. incumbent broadband pricing has long taken a particular beating when compared to places like Paris, where regulators took our discarded idea of local loop unbundling (opening up the incumbent networks to third party competition) and made it work. The result? Stories like this, where people visit Paris and are shocked to learn that Parisians can get 100 Mbps broadband, 250 cable channels, home phone service and a wireless phone with 3 GB of data -- for $63 a month. Yet to hear the AEI study author tell it in a blog post, France got it wrong, and the U.S. (where those same services will likely run you $250 or more a month) has it oh so right:

"In reality, the nations that have treated broadband networks as public utilities are high on promises and low on results. France and Italy are the truest examples of the utility model for broadband; wired broadband in France is no faster than mobile broadband, and Italy has the slowest networks in the G7. Both Italy and France have promised heavy subsidies to broadband carriers for upgraded networks, but austerity measures and other budget constraints have prevented the subsidies from materializing. Overall, broadband users in the US, Japan, and Canada have the best services, and those in Germany, France, and Italy have the worst among G7 nations. Careful examination of the data shows that the US is fundamentally on the right track; policy makers are well advised to stay the course."

Stay the course! Maintain the status quo! Ignore the lumpy fat man behind the curtain! The study takes the very long way home to ultimately conclude that America's actually doing a really good job at broadband, and therefore the sector should be deregulated even further. Obviously you can manipulate any data set with enough elbow grease and pie charts. That certainly works for broadband, at least until you actually go visit some of these duopoly markets (like my former hometown of Binghamton, NY) where your only choice is aging, over-priced DSL, or slightly faster, over-priced cable service -- both with an extra helping of abysmal service and disdain for the customer.

Everybody all together now: we're number one! We're number one! We're number one!

from the because-it's-not dept

For the past few months, I'd been pitched a few times from people (often somehow, if in murky ways, connected to the broadband industry) arguing that all those stories about how the US is far behind in broadband is untrue if you just looked at certain states. The basic argument is that since the US is so large, it's not fair to compare it to, say, South Korea. Instead, they claim, if you just look at a few states in the US, those states compare quite well to this country or that country. Of course, to make a total fruit basket out of mixed metaphors, this is pretty blatant cherry picking apples to compare to oranges. We haven't written any of those stories, but apparently someone went and created a misleading infographic to try to make the point on a site called "the Connectivist."

The only way to do a true apples to apples comparison would be to look at the data for areas with similar conditions, including population size and area, which the Connectivist doesn’t do.

The site simply glosses over the fact that while broadband in the U.S. is improving, it’s still not a world leader in deploying high-speed Internet access to its citizens.

Even though nearly three-quarters of the U.S. has access to what the FCC currently defines as “broadband,” meaning at least 4Mbps downstream, that’s still not a high enough percentage to get it into the top 10 globally. In fact, that percentage barely puts the U.S. in the 40 of all nations.

Likewise, only 39% of Americans have access to 10 Mbps service, which is what many people now consider the minimum acceptable standard for broadband. That ranks higher, putting the U.S. within the top 15 worldwide, but still pales in comparison to world leaders like Sweden (56%), the Netherlands (52%), and Romania (50%).

Morran notes, sarcastically, that the Connectivist seems to ignore all of this... and then suggests a reason why:

Maybe it has something to do with an organization you won’t see mentioned on the Connectivist until you get to its “About” page, where it just happens to mention that “The Connectivist is an online magazine created in partnership with the National Cable & Telecommunications Association.”

Ah yes, the NCTA, better known as the major trade/lobbying group for the cable industry. The very same NCTA that recently tried to set up a painfully awkward attempt at sounding cool and young to attract younger people to its anti-net neutrality stance -- and when confronted with the fact it was behind that campaign, said, "What led you to the conclusion this is an NCTA effort?" At least this time it's officially buried in the fine print, but really, NCTA, if your argument is so compelling, why is it that you always have to set up fake groups to push it?

from the transparency-needed dept

For years, we've discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US's general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry "advisors" who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are "free trade" agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration.

Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades.

A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid.

If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration.

Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains:

Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs.

However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies.

Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following:

For greater certainty, a Party may not deny a patent solely on the basis that the product did not result
in an enhanced efficacy of the known product when the applicant has set forth
distinguishing features establishing that the invention is new, involves an inventive step,
and is capable of industrial application.

Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective.

A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something.

In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders.

There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced.

The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling.

There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail.

There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.

from the that's-awkward dept

As we've noted, the EU Data Protection Regulation has seen some of the fiercest lobbying in the history of the European Union. That's because key US Internet companies are worried that stricter controls on taking personal data out of the EU might adversely affect their business models, which are largely based on using that data quite freely.

The human rights organization Access has been following this closely, and has made several freedom of information requests to both the US and EU authorities in an attempt to find out who exactly has been trying to weaken the Regulation and how. A recent Access blog post revealed that as well as many heavily-redacted documents, one interesting email was provided in its entirety:

The email is between staff working at the [National Telecommunications and Information Administration] of the [US] Department of Commerce. The email makes reference to the drafting of one of the lobby documents the Obama administration produced to influence the outcome of the data protection reform package (read EDRi’s analysis on the paper here). This is one of the many documents which likely contributed to a diluting of the Data Protection Regulation even before the proposal had been made public.

The email indicates that Commissioner Malmström and/or her cabinet had been sharing information with the U.S. Mission in the E.U., including appropriate times to publish the lobby document, information about internal politics within the Commission, and concerns about how the proposal for a Data Protection Directive could conflict with E.U. and U.S. Law Enforcement interests.

That's pretty shocking since, if true, it means that one of the most important departments of the European Commission, headed by the senior politician Cecilia Malmström, was actively working to weaken the proposed Regulation. According to Access:

For many who have been following the E.U. privacy reform debate closely, this trans-Atlantic cooperation was an open secret. However, until now, it has not been possible to demonstrate DG [Directorate-General] Home's maneuvers. Beyond the implications for the Data Protection Reform, the contents of the acquired document give cause for concern about Ms. Malmström’s suitability for leading EU negotiations with the USA on the Transatlantic Trade and Investment Partnership (TTIP), given that she has recently been chosen E.U. Commissioner-designate for Trade.

That last comment refers to the fact that Malmström, the current head of the department involved, DG Home, and thus with ultimate responsibility for her staff's actions, has been proposed as the new EU commissioner for trade, who would therefore take over the negotiation of TAFTA/TTIP from Karel De Gucht. Naturally, the possibility that her department was colluding with the US side to undermine data protection in the EU would not inspire confidence in her for this new role.

As part of her appointment process as trade commissioner, Malmström was questioned by Members of the European Parliament during a three-hour session on Monday. As well as being asked about key issues like corporate sovereignty -- she said that she won't take it out of CETA, but doesn't exclude the possibility of removing ISDS from TTIP -- she was also challenged on the allegations from Access, and replied as follows:

I have read those allegations; I totally reject them. I have always defended the European data protection proposals internally and externally. These are based on misconception or on lies and I think I have shown to this Parliament and other committees that I can negotiate with the United States tough agreements, where we stand up for European values, and I will certainly continue to do so. So I totally reject false allegations based on alleged leaked emails. I have always stood up for this formally, publicly and in all informal discussions.

You have systematically refused to comment on "these allegations" from "a leaked email". The document in question, referenced as "JN 656", is neither an allegation nor a leak. It was legally acquired by Access on July 14, 2014, through a freedom of information request.

Access then went on:

The clear implication of your statement is that the email in question is not genuine. We therefore demand an immediate clarification: Are you accusing Access or the US Department of Commerce of having falsified a document?

Although it seems likely that Malmström will be confirmed as the new trade commissioner, it also looks like this story will rumble on for a while yet (pdf).

from the or-is-it-a-trick? dept

The extreme secrecy surrounding the TAFTA/TTIP negotiations means that it is very hard to tell what the negotiators on both sides are really thinking about the current state of play -- as opposed to what they say in public. That means a new kremlinology is emerging that tries to tease out the deeper meanings of the information we have. For example, a meeting of the European Parliament's INTA committee, which is responsible for formulating policy on international trade -- and thus on TTIP -- has given an extremely strong hint that, on the European Commission side at least, people are beginning to panic about the lack of progress achieved during the talks.

That's what emerges from a blog post by Yannick Jadot, vice-chair of the INTA committee, who describes an extraordinary suggestion from Italy, which currently holds the rotating presidency of the European Council (one of the three main EU bodies):

In one of Italy's first appearances in the European Parliament since it assumed the Council Presidency in July, Carlo Calenda, the minister charged with overseeing TTIP for the Council, announced to the INTA committee the possibility of concluding an "interim agreement" for TTIP in light of lack of progress to date.

This is the first time such a thing has been suggested, and hugely significant, as Jadot notes:

It is both a clear indication that a thorough TTIP reevaluation is underway at the highest levels in Brussels, and that a comprehensive agreement may be too controversial and substantial to swallow in one go. The minister noted that a "profound reflection on the negotiation strategy" was now needed and that a decision to go for an interim agreement could take place after the US mid-term elections in November, with an aim to conclude it in 2015.

As well as the imminent US mid-term elections, another major factor affecting the evolution of the TTIP/TAFTA talks is the fact that there is a new group of European Commissioners taking over later this year. That's a clear opportunity for expectations to be re-set without worrying too much about what the current commissioner responsible for TTIP, Karel De Gucht, said or promised on this score. However, as Jadot rightly notes, this lowering of expectations might also be a ploy to lull people into a false sense of security:

By concluding a scaled down TTIP, or 'TTIP-lite', controversial items such as the investor-state dispute settlement, non-tariff barriers and mutual recognition of standards could be kicked to touch, and be dealt with later when public interest subsides. Problematic sectors like agriculture or public procurement could be isolated out and tackled individually. In many ways an interim agreement holds true to original intentions to create a 'living agreement', a structure that formalises never-ending negotiations, which do not need return to any parliament for ratification.

That would certainly be a clever way of presenting a TTIP to the public that appeared relatively benign, but which merely set the stage for the really unpopular elements to be eased in piecemeal in the coming years. Adopting this approach would ensure that the European Parliament did not reject TTIP outright -- a distinct possibility if it contains corporate sovereignty provisions, or undermines EU regulations on chlorine chickens and hormone beef, for example -- but would be unable to stop further changes later on. However, there's a problem with implementing this cunning plan:

Anthony Gardner, the new US Ambassador to the EU, immediately refuted Italy's interim suggestion at the same INTA meeting, aggressively defending a comprehensive deal:

"There are many geopolitical and economic reasons to conclude an ambitious agreement, and I say ambitious because we continue to believe, like our Commission colleagues, that only a comprehensive agreement would yield the significant results our leaders want. Yes I know our friend Carlo Calenda believes an interim agreement should be considered but we continue to believe that only a comprehensive agreement will work."

While Mr. Gardner said he would look forward to "a regular, open and honest dialogue”, he went on to attack those who have raised issues of concern, such as chlorine washed chicken. Such issues he claimed were "peripheral" and amounted to "scaremongering".

So, we are left with contradictory messages, with the European side apparently pushing for an interim agreement, and the US side refusing even to consider it. Along the way, though, there's some useful fodder for those TTIP kremlinologists to get working on.

from the bloody-cheek dept

Europol is the European Union's law enforcement agency whose main goal is to help achieve a safer Europe for the benefit of all EU citizens. We do this by assisting the European Union's Member States in their fight against serious international crime and terrorism.

The emphasis is in the original. You may notice that it mentions Europe a few times, which underlines the fact that Europol is a European organization based in Europe, run by Europeans and serving Europeans. But the US seems to take a different view:

The head of the EU police agency Europol is taking instructions from the Americans on what EU-drafted documents he can and cannot release to EU lawmakers.

The story in the EUobserver quoted above explains:

The issue came up over the summer when US ambassador to the EU Anthony Gardner told EU ombudsman Emily O'Reilly she cannot inspect an annual Europol report drafted by the agency's own internal data protection review board.

And if you are thinking there might be some top-secret US information in that report, the Dutch MEP Sophie In't Veld says that isn't the case:

"There is no operational information, there is no intelligence, there is nothing in the document. So you really wonder why it is kept a secret."

The problem seems to be simply that the uppity Europeans dared to write their report without asking for US permission first:

The Americans are unhappy because Europol had drafted the report "without prior written authorisation from the information owner (in this case the Treasury Department)."

The fact that the Treasury Department thinks that it "owns" information about how the Terrorist Finance Tracking Program (TFTP) complies with European data protection laws is rather telling. No wonder that back in March, the European Parliament called for the TFTP to be suspended in the wake of revelations that the US was going outside the program, and accessing EU citizens' bank data illegally. The latest high-handed action by the US ambassador to the EU is unlikely to encourage them to change their mind.

the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

Geist's post explores how that gradually changed, as reflected in subsequent leaks, culminating in the latest one, of the full text. Rather remarkably, he finds:

The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law.

He sees four main reasons for this:

First, the domestic policy situation in both Canada and the EU surely had a significant impact as ACTA protests in Europe and consumer interest in copyright in Canada led to the elimination of the criminal provisions and the adoption of better-balanced, consumer-oriented rules.

...

Second, while there is much bluster about "strong" European rules or "weak" Canadian laws, the reality is that both are compliant with international standards that offer considerable flexibility in implementation.

...

Third, the "made-in-Canada" approach is gradually garnering increased attention around the world as a creative, viable alternative.

...

Four, when the European Union was pressed to prioritize its top intellectual property issues during the negotiations, copyright ultimately took a back seat to pharmaceutical patents and protection for geographical indications.

While it's great that the copyright provisions of CETA are not nearly as bad as we had feared, there's a worrying implication here for TTIP/TAFTA. The EU's maximalist approach to copyright was only dropped in CETA because Canada fought back. In TTIP, there is zero chance the US will do that -- on the contrary, it may well want the EU to become even more extreme. That means we can probably expect some really awful copyright measures in TTIP, confirming earlier fears about what backroom discussions may be preparing for us.

from the no-more-no-spy dept

Techdirt has been following the complicated German reaction to Edward Snowden's revelations about US and UK surveillance of people in that country, whether or not in highplaces, for some while now. Although the German public has been deeply shocked by the leaks, the German government has been keen to preserve good relations with the US. But the revelation that there was not just one but probably twodouble agents working for the US within the German secret services has taken the country's unhappiness with its ally up a notch, and German Chancellor Angela Merkel has finally reacted with a classic diplomatic punishment, reported here by the Guardian:

The German government has asked the top representative of America's secret services in Germany to leave the country. Members of the government's supervisory panel announced the measure at a press conference in Berlin this afternoon.

Clemens Binninger, a member of Angela Merkel's Christian Democrats, who chairs the committee that oversees the intelligence services, explained that the move came in response to America's "failure to cooperate on resolving various allegations, starting with the NSA and up to the latest incidents".

Chancellor Angela Merkel's government is planning to scrap a no-spy agreement Germany has held with Britain and the United States since 1945 in response to an embarrassing US-German intelligence service scandal which has deeply soured relations between Berlin and Washington.

The unprecedented change to Berlin's counter-espionage policy was announced by Ms Merkel’s Interior Minister, Thomas de Maizière. He said that Berlin wanted "360-degree surveillance" of all intelligence-gathering operations in Germany.

...

Mr de Maizière told Bild that he was now not ruling out permanent German counter-espionage surveillance of US, British and French intelligence operations. His remarks were echoed by Stephan Mayer, a domestic security spokesman for Ms Merkel’s ruling Christian Democrats. “We must focus more strongly on our so-called allies,” he said.

It may well be that some "unofficial" German spying on the US had been going on until now, but the fact that Angela Merkel's interior minister has made an official statement of his country's intent to spy on the US, UK and France is a clear signal of her displeasure with the surveillance activities of those "so-called" allies. Given Germany's rapidly-escalating response here, an interesting question is: What will it do if/when the next big spying scandal breaks?

from the open-justice dept

To have a functioning judiciary in an open democracy, part of the point is to make sure that court proceedings are open to the public. Yes, there may be certain instances where certain aspects must be kept secret, but the default should be open and public. Unfortunately, in both the US and UK this week, it appears that when it comes to the bogeyman word "terrorism," courts are willing to go dark. The more serious situation is over in the UK, where it has just come out that a secret terrorism trial is being held -- the first one in centuries. Even the names of the two defendants are not known (they're listed as merely AB and CD). Journalists had even been barred from mentioning the existence of the trial, until a gag order was just overturned. Note that the Guardian's page linked above had to turn off comments for legal reasons. Journalist Tim Cook has also spoken out eloquently about why this cannot stand.

I cannot say how broken-hearted I am about the prospect of a major criminal trial involving two men charged with serious terrorism offences being held entirely in secret for the first time in modern British legal history. I have spent my entire journalistic life campaigning against courtroom secrecy and this represents a nadir and indication of abject failure.

Meanwhile, back here in the good, old United States, where we do have a First Amendment, at least we know that Adel Daoud is on trial. But the 7th Circuit Court of appeals kicked everyone out of the courtroom to hold a "secret hearing" with just the DOJ. As we wrote a few months ago, Daoud's lawyers are asking to actually see the FISA court orders that were used to gather evidence against their client -- and the DOJ is flipping out about that. While some of the hearings were held openly, at one point, Judge Richard Posner abruptly kicked everyone but the DOJ out, including Daoud's lawyers.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance -- including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Some reporters tried to ask what was going on, but Posner simply told them "No!" and kicked them out. Daoud's lawyer was similarly perplexed:

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

As the article notes, this is highly unusual. While in national security cases, certain information may be filed under seal, or certain portions may be held "in camera" without reporters or the public, it's not at all common to have just one side present. And while you may say that it makes sense in this case, where the three judge panel has to determine whether or not it's appropriate to share the FISC orders with Daoud's lawyers, it's still somewhat troubling to see the ease with which secret court proceedings may occur.